Wrongful death actions are brought by fiduciary nominal plaintiffs seeking to recompense beneficiaries, in the generic as well as often in the testamentary sense, of the decedent. Nominal plaintiffs bringing wrongful death suits are thus "representatives" of an "estate" of the decedent, although defined by wrongful death statutes and decisions rather than by testamentary instruments.

Holding the citizenship of the decedent determinative for diversity purposes respects the purposes of the diversity of citizenship provision of Article III of the Constitution, by permitting invocation of federal diversity jurisdiction where there may be a risk of local prejudice.
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At the same time, this interpretation of 28 USC 1332(c)(2) avoids unnecessary additions to federal judicial dockets because of manipulation of jurisdiction or disputes concerning existence of diversity. See Fed.R.Civ.P. 1. Local prejudice is most unlikely to exist in wrongful death suits in which the decedent and defendants were citizens of the same State.

The interpretation adopted here was also reached in Green v. Lake of the Woods County, 815 F. Supp. 305 (D Minn 1993).
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IV

Where a dismissal is required after substantial litigation because of unexcused delay by one or more parties in raising a dispositive matter, legal fees and other costs may be awarded to the party disadvantaged by such conduct. Basso v. Utah Power & Light Co, 495 F.2d 906, 911 (10th Cir.1974); Page v. Wright, 116 F.2d 449, 454-55 (7th Cir.1940), cert. dismissed 312 U.S. 710 (1941); North American Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293, 297 (SDNY 1979). Because this dismissal is entered at the outset of this diversity case, there is no occasion to award legal fees or costs against any party.

V

Applicable statutes of limitations are tolled during the pendency of the federal action which I now dismiss; the dismissal is without prejudice to the merits of any claims or defenses asserted by the parties. See Cullen v. Margiotta, 811 F.2d 698, 727 (2d Cir.1987), cert. denied 483 U.S. 1021 (1987); Town of Colonie v. Cahill, 172 A.D.2d 904, 567 N.Y.S.2d 956 (3d Dept 1991); Delgado v. New York City Dept. of Correction, 797 F. Supp. 327, 329 (SDNY 1992).

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